Baulderstone Hornibrook Pty Ltd v Beneficial Finance Co Ltd [see also CA98.351] [1998] QCA 430

IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 5499 of 1998 Brisbane [Baulderstone Hornibrook P/L v. BFC] BETWEEN: BAULDERSTONE HORNIBROOK PTY. LTD. ACN 002 625 130 (Applicant) Appellant AND: BENEFICIAL FINANCE CORPORATION LIMITED ACN 007 597 202 (Respondent) Respondent Pincus J.A. Thomas J.A. Byrne J. Judgment delivered 6 November 1998. Further order delivered 18 December 1998. Further order of the Court. APPLICATION FOR INDEMNITY CERTIFICATE REFUSED. CATCHWORDS: APPEALS - indemnity certificate - S.15(1) Appeal Costs Fund Act 1973. Counsel: Mr. P.A. Keane Q.C., with him Mr. A.M. Daubney for the applicant/ appellant Mr. J.S. Douglas Q.C., with him Mr. K.B. Varley, for the respondent Solicitors: Stubbs Barbeler Grant for the applicant/appellant Clarke and Kann Lawyers for the respondent Hearing Date: 24 August 1998 -- 1 of 3 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 5499 of 1998 Brisbane Before Pincus J.A. Thomas J.A. Byrne J. [Baulderstone Hornibrook P/L v. BFC] BETWEEN: BAULDERSTONE HORNIBROOK PTY. LTD. ACN 002 625 130 (Applicant) Appellant AND: BENEFICIAL FINANCE CORPORATION LIMITED ACN 007 597 202 (Respondent) Respondent REASONS FOR FURTHER ORDER - THE COURT Judgment delivered 6 November 1998 Further order delivered 18 December 1998 1 The unsuccessful respondent (Beneficial Finance Corporation Limited) has applied for an indemnity certificate in respect of the appeal. Its failure to apply at the conclusion of the Court of Appeal hearing is said to be the consequence of the court permitting submissions on the appeal to be made on the application for leave. Submissions on the question of costs, including whether an indemnity certificate was sought, would still be expected in that situation, but presumably the truncated procedure may have contributed to this oversight. The applicants' solicitors further state that they were unaware of practice direction no. 2 of 1982, which we assume to be a reference to practice direction no. 1 of 1982. 2 Whilst the explanation for failure to comply with the practice direction is less than -- 2 of 3 -- 3 satisfactory, it is to the substance of the application that we turn our attention. The ground upon which the court has been asked to grant a certificate is stated as follows: "The Court of Appeal's decision was based on questions of law, particularly the interpretation of sections 72 and 99 of the Queensland Building Services Authority Act 1991. There was, prior to the decision of this Honourable Court, no authority for the submission that a mortgagee in possession of a building site could be "a person who carried out building work" under section 72 of the Queensland Building Services Authority Act". 3 The position is that the applicant was a litigant who chose to raise a particular preliminary point which if successful would have achieved its end of avoiding potential liability through avoiding becoming a party. The point it raised was upheld by the Tribunal and in the District Court, but failed in this court. It is true that there was prior to the present decision no authority for the potential liability of the mortgagee in possession. More specifically, there was no authority either way on the question, but a perusal of the relevant legislation would expose the arguability of the relevant proposition. This is not a case where for example a litigant is disadvantaged by reversal in a court of appeal of a line of authority on which a litigant has reasonably relied. In such a case and indeed in some other situations where it would be unjust for a litigant to bear responsibility for the other party's costs the discretion may well be exercised in favour of an applicant. However the present case is essentially one of a litigant who elected to take a point on which there was no authority other than the statute and on which it failed. The application for a certificate should be rejected. -- 3 of 3 --